HB40 - Beware the unintended consequences

[PeteG]

I have had an opportunity to read HB40, and I have been following the commentary here on the bill (although, of course, I have not read all of the commentary).

There is a lot in this bill that I like. There are parts of it that make me uneasy. Much of it seems to be misunderstood by those who believe it will make it "legal" for them to avenge their dignity and personal space in the parking lot of the local convenience store.

The following has been published in a recent PFOA "alert," and, based upon my reading of the bill, I am not sure it is correct:

The bill also eliminates the duty to retreat on the streets provided one is in fear of grave bodily injury or harm, and provided they are not engaged in criminal activity.

The bill does not appear eliminate the duty to retreat if one can safely do so. Section (2)(ii) still provides the use of deadly force is not justifiable if "the actor knows that he can avoid the necessity of using [deadly] force with complete safety by retreating."

This has been the law for a long time. Citizens in Pennsylvania have, for many years, had the defense of justification ("self-defense") available where deadly force was used "on the street," provided the citizen reasonably believed such force was necessary to prevent imminent, serious bodily injury or death to themselves or another human being (which includes kidnapping or forcible rape), the citizen did not provoke the incident, the citizen was not the initial aggressor, the person against whom the force is being used is not a public official performing his duty, and one could not safely avoid the problem by retreating or surrendering a possession to one who claimed it was his.

HB40 does, however, also contain this proposed language:

"(2.3) An actor who is not engaged in a criminal activity and who is attacked in any place where the actor has a right to be has no duty to retreat and has the right to stand his ground and use protective force, including deadly force, if the actor believes it is immediately necessary to do so to protect himself against death, serious bodily injury, kidnapping or [forcible rape]."

So does one have a duty to retreat if they have a way of doing so in complete safety, or not? Is the difference the word "attacked?" "Attack" is not a defined term in the statute. I have attended day-long seminars on recognition of when one is under "attack." Or maybe "attack" is not the determinative difference. I don't know.

"Criminal activity" is, thankfully, defined so as to limit the term to criminal activity which is the "proximate cause of the confrontation" between the shooter and shootee. This would at least preclude not paying one's taxes for the money they made at the Tupperware party. I can't say if it means the guy entering one's home did so to get one's marijuana stash.

What is does do, in this regard, is raise a presumption that a person's belief that deadly force was necessary was "reasonable," under certain conditions. If the individual on the receiving end of the gunfire was "unlawfully and forcefully entering a dwelling, resident or occupied vehicle," for example, there will now be a presumption the actor reasonably believed that deadly force was immediately necessary to protect himself against death ... etc.

Duh.

I submit that presumption would exist without the passage of HB40. Further, the same evidence one would use to rebut that presumption today will rebut that presumption if HB40 is enacted. (E.g., the person forcefully entering your home is six years old, unarmed, and it's 2:00 p.m. on a Saturday.)

Okay. So now there are presumptions built into the statute, which do not rely upon the common sense of the jurors. (There are many who believe jurors, by definition, have no common sense. After three decades of organized insurance company propaganda and bitching by millionaire talk radio hosts about how oppressed they are, people seem to have come to the conclusion that when one of us is placed on a jury, we become a complete idiot, instructed by judges who are also all either complete idiots or politically motivated to destroy American business, controlled by plaintiff's attorneys who are all Svengali's, and who are opposed only by highly paid insurance defense counsel who are completely incompetent. As a result, the complete idiot jurors give money away to undeserving people, just because. Personally, I my experience is otherwise, but I don't have a radio show, and nobody cares about the facts anyway.)

Well, okay. No harm done. It takes the presumption out of the hands of the jury (also known as "us," "the people" and "the common man") and raises it as a matter of law. Then it puts it back in the hands of the [presumptively idiotic] jury to determine if the presumption is rebutted by evidence that the belief was unreasonable. And the point is what?

I don't like enacting window dressing into law. It opens the door to unintended consequences.

As I said, there are a lot of things in this Bill I like. It addresses a number of OTHER problems that need attention. But it does not materially alter the law of "self-defense" in any way that should affect how you or I live our lives.

My conclusion is this: It doesn't matter where you are at the time, or who you confront; if you can retreat safely, then do so. "Castle doctrine" laws really don't add anything to the personal calculus in which one must engage when making the split second decision to shoot or run; although they may or may not enhance one's ability to defend oneself if the decision made is later questioned in court.

As a corollary: If you are looking for this bill to make it "legal" to shoot somebody because he is "bad," you are crazy and should talk to a professional about your anger problem. In the meantime, you should not carry a gun.

[Nic]

I must have missed some threads, because I have never read a posting on this forum that confused HB40 with a license to kill BGs.

[knight0334]

What that does is make it so you cant just go for your gun and escalating a situation from one not needing force/deadly force into a situation that does.

Its just life the other states that have enacted Stand Your Ground laws... ...you just cant go straight to your fists or guns, but you aren't required either to retreat.

[ChamberedRound]

Pete,

Most of your comments relate to use of force, and if I understand correctly you say that as far as the use of force guidelines go, this bill is a net zero, so why enact it?

A fair point.

One thing you didn't address, however, is the part of the bill which describes civil immunity. Even if the rest of this bill restates that which is already established law, it's still worth enacting for the civil immunity clause. Without HB40, even if the use of force is deemed justified by the court, a criminal can sue the victim and put them through further suffering, and potentially ruin them financially. None of this can happen with HB40 as law, assuming the use of force is justified. IMHO, that alone makes it worth supporting.

[NevynPA]

It also prevent the following:

Person breaks into your home, begins climbing the stairs.
You shoot them, they fall down the stairs.
They sue you for their broken arm from falling down (due to you shooting them).

Originally Posted by one of the proposed changes

is justified in using such force and shall be immune from civil
liability for personal injuries sustained by a perpetrator which
were caused by the acts or omissions of the actor as a result of
the use of force.

[TimtheDestroy]

called my rep in support of this. When i spoke to the person on the phone i did not mention anything about "being able to shoot/kill a bad guy" but rather gave my support to aid victims from facing criminal charges or lawsuits and thus be victimized further. if anyone is in the situation where they are in immediate danger they should protect themselves in any way they see fit, and that includes retreating if its the best option, however it is not always an option and anything to aid them from further becoming a victim is good.

Hey criminals, your not welcome in this state.

[Carnes]

Originally Posted by PeteG

As I said, there are a lot of things in this Bill I like. It addresses a number of OTHER problems that need attention. But it does not materially alter the law of "self-defense" in any way that should affect how you or I live our lives.

It does not affect how you or I should react in a self defense situation, but I think it might have an effect on my ability to justify the self defense action.

As you pointed out the justifications for self defense imply that if you can retreat, you need to. But then there is an additional 'duty to retreat' law that creates a situation where a prosecutor gets two chances to prove that the person who killed in self defense was in the wrong.

The prosecutor gets to try to prove that I was not justified in using a deadly weapon in self defense, and if that is not going well, the prosecutor gets another shot at it by trying to prove that I could have retreated. I get the impression that HB40 will make it harder for a prosecutor to turn the victim who defended his/herself into the criminal.

[Shawn.L]

protection from civil liabilty is the real pull on this for me.

whats your take on the provisions for that Pete?

originaly posted by CharmberedRound
One thing you didn't address, however, is the part of the bill which describes civil immunity. Even if the rest of this bill restates that which is already established law, it's still worth enacting for the civil immunity clause. Without HB40, even if the use of force is deemed justified by the court, a criminal can sue the victim and put them through further suffering, and potentially ruin them financially. None of this can happen with HB40 as law, assuming the use of force is justified. IMHO, that alone makes it worth supporting.

[ByAnyMeans]

Originally Posted by ChamberedRound

Pete,

Most of your comments relate to use of force, and if I understand correctly you say that as far as the use of force guidelines go, this bill is a net zero, so why enact it?

A fair point.

One thing you didn't address, however, is the part of the bill which describes civil immunity. Even if the rest of this bill restates that which is already established law, it's still worth enacting for the civil immunity clause. Without HB40, even if the use of force is deemed justified by the court, a criminal can sue the victim and put them through further suffering, and potentially ruin them financially. None of this can happen with HB40 as law, assuming the use of force is justified. IMHO, that alone makes it worth supporting.

I agree whole heartedly. Even if it does not increase the use of force the biggets part of the bill is the protection from civil suit if you need to defend myself.

[PeteG]

Originally Posted by Shawn.L

protection from civil liabilty is the real pull on this for me.

whats your take on the provisions for that Pete?

On the whole, I like the immunity provision, even though I'm not at all sure it addresses a real problem.

It limits the immunity "from civil liability for personal injuries sustained by a perpetrator whcih were caused by the acts or omissions of the actor as a result of the use of force." "Perpetrator" is defined to mean "a person against whom an actor is justified in using force as provided by 18 Pa.C.S. Section 505, 506 ... etc."

Limiting it to a suit by the "bad guy" is a good idea. This leaves an innocent and injured party with a remedy in the event an incompetent with a gun negligently injures innocent people. (It's that personal responsibility thing.)

But this limitation would appear to also leave in place the possiblity of claims by the SPOUSE of the "perpetrator," as well as actions for loss of support by a DEPENDENT of the perpetrator.

The next section following immunity provides for an award of attorney's fees to the defendant if someone initiates an action "by or on behalf of a perpetrator," but that section does not cover an action by a spouse on his or her own right for loss of consortium. ("Loss of consortium" means the loss of companionship, services and social benefit one derives from thier spouse over a lifetime, sometimes referred to as "sex, services and society.")

I have not seen any numbers regarding the percentage of self-defense shootings (other than those involving peace offcers) that result in civil actions. Certainly they can happen. But if and when they do, a spouse or orphaned child of the deceased is a lot more attractive plaintiff than an guy who got shot robbing a convienence store. My suspicion (unverified, and so far as I know unverifiable) is there are a lot more civil suits by relatives than by the actual "perpetrator."

In that regard, does anyone know that number? If every third or fifth self-defense shooting is followed by a civil suit, it's a problem. But if there have been three such suits in the past 50 years, would that not make this a solution in search of a problem? Is this just to assuage people's fears that it might happen, making it, literally, "feel good" legislation? We (meaning me, too) assume it is not; but that is an assumption.

On balance, I would like to see this bill passed. As I said, there's a lot in this bill I like. I am just not sure it does what so many people want it to do, which is to allow them to inflict grevious bodily harm when there was a safe way to avoid it, or protect them from a civil suit if they are forced to shoot someone.

I really don't think any statute could give people this assurance. To cover all the concerns we might have about one kind of situation would require language that would create problems regarding another kind of situation. This is precisely why we have judges and juries who are supposed to exercise judgment, according to general principles, under the particular facts of each case, as informed by common sense and experience. Take away judgment, common sense and human experience, and try and replace them with an all-encompassing "rule book," and you may as well be governed by a computer.

My original point was that after a shooting, some of the language in here could be helpful, in a close case, but it is foolish to rely upon a statute for such help. The best way to protect oneself from the hazards of criminal and civil prosecution, be they real or imaginary, is to not to present a close case. One way to do that is to put out of your mind the idea that you "don't have to" retreat if a safe retreat is possible, and always take that opportunity to retreat if it presents itself, regardless of what you think your rights are.

That's not an argument. It's an observation.